NBA’s decision could be tested in court

Posted
Wednesday, April 30, 2014 6:48 pm

By The Associated Press / Associated Press

Adam Silver’s decision to ban Donald Sterling for life and start the process to remove him as owner of the Los Angeles Clippers has been universally hailed as a bold message that the NBA will do everything in its powers to protect its players, coaches, staff and corporate partners from racism.

While the NBA commissioner’s outrage-tinged verdict may have helped the league avoid a player-led boycott of playoff games and slowed the exodus of sponsors that were bailing on the Clippers, it also brings the risk of setting an ambiguous new precedent for stripping a team from an owner while raising questions about whether it will ultimately hold up in a courtroom.

"We are in uncharted territory here," said Gabe Feldman, a law professor and director of the Tulane Sports Law Program.

Dallas Mavericks owner Mark Cuban, who later issued a statement in full support of Silver, initially raised concerns about a slippery slope that could be created by forcing an owner to sell a team because of comments he made that were meant to remain private, no matter how offensive they were.

"How many people are bigoted in one way or the other in this league?" Cuban asked on Monday, a day before Silver announced the punishment. "I don’t know. But you find one, all of a sudden you say well, you can’t play favorites being racist against African-Americans. Where do you draw the line?"

Silver was under enormous pressure to act swiftly and decisively. In the days following the release of an audio recording in which Sterling made several racist remarks to a female companion, Silver heard calls for action from President Barack Obama, Magic Johnson, Michael Jordan, LeBron James, Kobe Bryant and other NBA stars. He watched several high-profile sponsors cancel or put on hold their marketing deals with the Clippers and saw Clippers players and Heat players warm up for their playoff games with their shooting shirts turned inside-out as a silent protest.

Roger Mason, Jr., the first vice president of the NBA players’ union, said the players were strongly considering boycotting games if Silver delivered a decision that did not go far enough in their eyes.

Then Silver announced his discipline Tuesday for Sterling -- a lifetime ban, a $2.5 million fine and a call for the league’s owners to vote to force Sterling to sell the Clippers.

"The job is still not done," James said Wednesday. "Now we need the owners to step up and do their part. ... It was a win, but it’s not done."

Sterling built a reputation over the years as a stubborn litigator who revels in the chance to impose his will in a courtroom, so many across the league fully expect a legal fight. Feldman said Silver is within his rights as commissioner under the NBA’s constitution to fine and suspend Sterling.

"The billion-dollar question is whether abhorrent, offensive, harmful comments made in a private conversation rise to the level of circumstances necessary to trigger this vote," Feldman said.

The NBA’s bylaws, Feldman said, do allow for owners to call for a vote -- one that requires a 75 percent super-majority to force an owner out -- under certain specific circumstances, including an inability to pay the bills, gambling on NBA games or game fixing.

But there is no explicit mention of racist or otherwise offensive statements triggering a vote, rather there is broader language that allows the owners to act if they believe a fellow owner is not acting in "the best interests of the game."

That ambiguity could aid Silver and the NBA in their defense of the move while at the same time opening the door for Sterling to fight for the team he has owned since 1981.

"There’s certainly a possibility that Donald Sterling will sue saying that the commissioner and the owners exceeded their authority under the NBA constitution and that the owners never contemplated an ownership being terminated based on private, even if horribly offensive, statements," Feldman said.

Minnesota Timberwolves owner Glen Taylor, who as chairman of the NBA’s board of governors was in constant contact with Silver throughout the process, told Minneapolis radio station KFXN-FM on Tuesday that he understood Cuban’s initial concerns that "we’re going down a road where we’re forcing a sale and if we do it once, what might be the criteria in the future and let’s be careful."

"It’s good advice," Taylor said. "Certainly it’s one that I thought of, but I agree that we need to go there and I think it is the appropriate decision."

In the event of a lawsuit, Feldman said the league could argue for an expedited process, but acknowledged that the court system can only move so fast.

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